Over the past few years, Muslims in the New York metropolitan area who have been subject to pervasive and indiscriminate spying of their mosques, community centers, businesses, and schools, have reported degeneration of their communities and dimmed career prospects. But a federal court ruling Thursday that threw out a challenge to the New York Police Department spying program said it’s not the NYPD’s fault, but the Associated Press’s for reporting on the existence of the program in the first place.

“Plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents,” U.S. District Judge William J. Martini wrote. “The harms are not
‘fairly traceable’ to any act of surveillance.”

Martini, a former Republican congressman appointed to the New Jersey federal trial court by George W. Bush, concluded that wholesale monitoring of the Muslim community is perfectly okay because, “the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.”

“The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself,” Martini wrote, without more elaboration on how he reached that conclusion.

New York Police Department surveillance of the Muslim community was brought to light by an extensive Associated Press series that started in 2011 and continued into 2012. Under the aggressive program, undercover informants infiltrate Mosques, restaurants, bookstores, and Muslim student associations without any particular suspicion of the places being monitored or the people being surveilled. Officers also monitor Muslims’ social media activity, websites, and blogs. The post-9/11 “Demographics Unit” developed databases based on this information, and a mapping of Muslims’ locations. But NYPD officials have conceded that the program has not generated a single lead, according to plaintiffs.

Martini rejected the lawsuit on the procedural question of what is known as standing, which requires plaintiffs to establish a particularized injury. He concluded that the harms caused by the NYPD’s surveillance program were not based on specific actions against these individuals, but rather of the general surveillance program. But Martini did not stop there. He went on to explain why plaintiffs’ lawsuit also fails on every other front, including because its core constitutional claims are “not plausible” — that the program unconstitutionally racially profiles, and violates religious rights.

“[T]he Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion,” he writes. “The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.”

Center for Constitutional Rights legal director Baher Azmy, who represented the plaintiffs, compared the court’s ruling to that in the now-repudiated U.S. Supreme Court decision upholding Japanese internment, Korematsu v. United States, in which Justice Hugo Black wrote for the majority, “To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire[.]” U.S. Supreme Court Justice Antonin Scalia recently commented that while “of course Korematsu was wrong,” “you are kidding yourself if you think the same thing will not happen again,” reasoning that panic over war remains a dangerous influence.

Judge Martini claimed that the cause of the plaintiffs’ harms in this case was the Associated Press’ reporting on the matter. But as plaintiffs point out in a filing in the case, the AP’s release of this information only caused injury “because the City’s policy was unlawful and discriminatory in the first place.”

Another lawsuit challenging the NYPD spying in a New York federal court cites other harms of the program. The plaintiffs in that case allege that they were injured by direct interaction with officers. One plaintiff, an imam, says that after a disconcerting visit from police officers, he started recording his own sermons for fear that his statements would be taken out of context or misreported. And a recent study by civil rights groups details incidents in which Muslim teens were questioned about their online community or religious life, and then asked by the NYPD to spy on their peers.

Former New York City Mayor Michael Bloomberg was a vigorous defender of the program, but now-Mayor Bill de Blasio pledged during his campaign that he would end Muslim spying without particularized suspicion. His new police commissioner, Bill Bratton, also has a more restrained record on post-9/11 surveillance. But representatives for the city have declined to comment on the ruling. A post-9/11 court order expanded the scope of allowable police surveillance over political activity, but does not allow surveillance that violates religious or other constitutional rights.

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